By Karamveer Lalh, January 23, 2024
Canada needs a new, democratic approach to managing the growing number and increasing intensity of public protests, especially in the wake of the Israel-Hamas conflict as emotions boil over in this country.
Our police forces are ill-equipped to handle demonstrators and demonstrations that fall just short of criminal activity but are offensive to many community-minded people. The strict enforcement of law has also not prevented the spread of hatred and harassment beyond the protest sites.
A more feasible solution could involve shifting the responsibility of enforcing “community standards” to a democratically accountable body. This task could be undertaken by institutions like Parliament or provincial legislatures, which have the authority to impose civil injunctions or, in exceptional circumstances, invoke the notwithstanding clause.
Such an approach would prevent the counterproductive outcome of jailing protesters for their actions and provide clear guidance on which level of government has the enforcement authority. This strategy not only respects the democratic process but also ensures that the measures taken are proportionate and appropriate to the nature of the protests.
It has become evident that a new approach is necessary, especially since Oct. 7, 2023, when Hamas conducted a terrorist attack on numerous civilian sites in Israel, prompting a forceful response from Israel. Employing air and land forces, Israel’s campaign, aimed at dismantling Hamas, inevitably led to civilian casualties due to Gaza’s poor infrastructure and high population density. This, predictably, attracted global condemnation.
Domestically, these events have stirred deep emotions, manifesting in various forms of political action. Activities spanning from boycotts and blacklisting to protests and an increase in hate crimes against Jewish and Muslim populations in Canada are a testament to this. As a western liberal democracy, Canada naturally tolerates a broad spectrum of political actions, including protests, as enshrined in the Charter of Rights and Freedoms. However, a growing concern is the ability of Canadian law enforcement to manage these protests effectively.
Last month, The Globe and Mail published a story stating that certain MPs’ offices have closed following targeted harassment campaigns by pro-Palestinian protesters. In November, Liberal MP Anthony Housefather noted that the “police need to act” concerning an incident where a Jewish school was targeted by gunfire and that “it is hard to believe that this level of violence is not directly traceable to the incitement to hate happening at demonstrations.”
The police response to these protests has been mixed and not without controversy. The Toronto police were heavily criticized for the actions of one officer who gave a coffee to a protester. In recent weeks, the police announced they would ban protests on a major overpass over Highway 401 in Toronto, citing that the demonstrations had “escalated” and now were threatening public safety. Jewish groups and several politicians called for this move as these protests were held in a historically Jewish area. Pro-Palestinian protesters, in turn, criticized the police for selective enforcement of the law.
Canadian law enforcement’s struggle to manage protests effectively is not exclusive to the pro-Palestinian movement. Recent history shows similar challenges with the Wet’suwet’en pipeline protests, Extinction Rebellion demonstrations, and those opposing COVID-19 restrictions with international border blockades and the occupation of downtown Ottawa. These protests, much like the pro-Palestinian ones, have succeeded in capturing public attention and dominating news headlines, underscoring their effectiveness in raising awareness for their respective causes.
The pro-Palestinian protests are noteworthy not only for their expression of opinions but also for their strategic locations. Often situated near historically Jewish neighbourhoods, these protests stand in stark contrast to more neutral venues like legislative buildings or city halls. This choice of location intensifies the debate about the fundamental purpose of a protest, which is to draw attention. However, restricting protest locations and forms could potentially infringe upon the Charter-guaranteed right to freedom of expression, highlighting a key tension in the management of public demonstrations.
In terms of law enforcement tactics, the primary method employed has been to target individual protesters on charges such as mischief or for specific actions like displaying a flag of a designated terrorist organization. This approach, while aligning with the typical crime management strategies of a western liberal democracy, is less effective in addressing the collective dynamics of large-scale protests. Additionally, this method might convey to the public a perception of law enforcement focusing on minor technicalities, similar to how tax evasion charges were used to apprehend Chicago mobster Al Capone, instead of directly addressing his more serious criminal activities. Essentially, there’s a growing concern that current law enforcement methods may not adequately address the broader issues at play in these protests.
Public expectations for the police to “maintain public order” are clear, yet what this precisely entails remains ambiguous. The role of the police in independently making judgment calls on what constitutes maintaining public order is also questionable. Primarily, police responsibilities revolve around investigating and addressing crime. However, the infrequency and complexity of prosecuting under Canada’s hate speech laws add another challenge: protesters, or at least their organizers, know these legal nuances and often walk a fine line – employing disruptive tactics to attract media attention while cautiously avoiding outright criminal offences.
This scenario poses a significant dilemma for law enforcement. While the police can enforce laws against clear violations, the effectiveness of such an approach in dispersing protests is limited without resorting to extensive surveillance to capture petty offences. However, this strategy is not congruent with democratic principles. The public’s desire to disperse protests often stems from finding them offensive rather than illegal, yet there is a lack of tools or political will to address this sentiment effectively.
While addressing the challenges police face in managing protests, it’s crucial to acknowledge the undeniable instances of violence, harassment and vandalism that have marred many demonstrations. These instances undeniably warrant police intervention. However, it’s important to note that broadly applying Criminal Code enforcement to disperse protests is often impractical.
While potentially causing public discomfort, most protesters do not typically engage in outright criminal behaviour. They are exercising their rights as granted by the Charter, albeit in ways that might unsettle the public. In the absence of clear criminal intent, this discomfort is unlikely to meet the legal threshold of criminal harassment, particularly under the scrutiny of current judicial and political norms.
Moreover, there is a question of whether the Canadian public would support giving police the authority to decide and enforce what constitutes a violation of “community standards,” based on subjective perceptions of offensiveness.
It is evident that Canada’s existing laws and law enforcement policies struggle with large, disruptive and politically sensitive protests. Due to the political sensitivity and the need to give meaning to “community standards,” a political response is necessary.
Implementing democratic oversight of protests with a clear and balanced framework is crucial in reconciling the right to protest with community standards. A potential solution could be adopting a “traffic-light” zoning system, categorizing different areas based on the level of restriction for protests.
Strict regulations would apply in “red zones,” which might include areas around critical infrastructure or sensitive locations where disruption could pose serious risks to safety or property. Protests in these zones would be highly restricted due to potential harm or significant disruption. Examples could include major highways, power plants or other vital facilities. The focus here would be preventing any activities that could lead to injury, damage or severe obstruction.
In “medium zones” or “yellow zones,” covering most public spaces, protests would be allowed but with particular prerequisites, such as obtaining permits from relevant authorities. The permit process would involve assessing the proposed protest’s impact on public order and community standards, ensuring a balance between the right to protest and the community’s well-being. These zones offer a compromise, allowing freedom of expression while maintaining a degree of control to prevent chaos or excessive disturbance.
The most permissive areas, “green zones,” would ideally be in front of designated government buildings like provincial legislatures, federal Parliament or city halls. The rules around protests would be the most relaxed in these zones, acknowledging these spaces as traditional forums for public expression and dissent. The ease of organizing protests in green zones would encourage demonstrators to choose these locations, thereby reducing the potential for conflicts in more sensitive or disruptive areas.
This traffic-light system provides clarity and structure for organizers and law enforcement and educates the public on the expectations and limitations of protest activities in different areas. Such a system respects the fundamental democratic right to protest while upholding public safety and community standards.
While the traffic-light system offers a structured and democratic approach to managing protests under normal circumstances, it’s essential to recognize that exceptional situations may arise where the government needs to exercise broader authority. This is particularly relevant in crisis scenarios where public safety, national security or the fundamental rights of citizens are at imminent risk.
In such exceptional circumstances, the government, guided by its responsibility to protect public welfare and order, must be empowered to take decisive action. This could range from temporarily escalating the restrictions in specific zones to more assertive measures like invoking the notwithstanding clause to abrogate the right to protest or implementing the federal Emergencies Act. These actions, while extraordinary, are sometimes necessary to resolve crises that go beyond the scope of regular protest management.
This dual approach — a structured system for regular protest management and the reserved authority for extraordinary government intervention — ensures a balance between maintaining civil liberties and the state’s duty to protect its citizens under exceptional circumstances. It recognizes that while the freedom to protest is a cornerstone of democracy, the state must also be able to decisively end a crisis when the democratically elected government deems that public welfare is at stake.
The political sensitivity and need to define “community standards” call for a political response rather than purely legal. This approach would lend democratic legitimacy to decisions impacting public order, acknowledging that in some instances, the sovereign authority’s discretion, even if arbitrary, is necessary for the broader pursuit of order.
Karamveer Lalh is an Edmonton-based lawyer.
